Lori Drew verdict in: No felonies, but TOS violations are a federal crime

The jury is in: Lori Drew has escaped felony convictions for her role in a cruel MySpace prank that turned tragic when its target, teenager Megan Meier, killed herself after getting a vicious message from the fictional online "boyfriend" drew and her friends had concocted. But the jury found that her violation of MySpace's terms of service counted as a misdemeanor under computer hacking statutes.

Meier's death prompted plenty of public outrage, but prosecutors were hard pressed to find a law under which the perpetrators of the MySpace prank could be charged. So they advanced a novel theory: Creating a phony account, barred by MySpace's ToS, counted as "unauthorized access" to a computer under federal computer intrusion law. If that "access" was in furtherance of some other tortious action—like "intentional infliction of emotional distress"—the charge could be bumped up to a felony. This already dodgy argument was complicated by the revelation during the trial that it was Drew's accomplices who had actually created the account and typed out most of the messages to Meier—including that final, fateful one. None of them had actually read the ToS.

A misdemeanor conviction may sound like a slap on the wrist for an act of deception that resulted in a girl's suicide. But as law prof Orin Kerr argues, the precedent here seems enormously dangerous. It effectively elevates a private contractual violation to the level of federal crime. Let's face it, minor ToS violations are commonplace—and unless you make a habit of wading through pages of legal jargon on every Web site where you maintain an account—easy to commit without even knowing it. (There does seem to be some sort of intentionality requirement here, and a judge apparently still needs to rule on whether this has been proven.) Add any sort of tort into the mix—libel? copyright infringement? another ToS violation on some third-party app accessed through the site?—and it seems way too easy to become a felonious computer hacker.

Drew gets no sympathy from me, but I doubt it's worth making such incredibly bad law just to punish her.